[Federal Register Volume 61, Number 5 (Monday, January 8, 1996)]
[Proposed Rules]
[Pages 606-611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-218]
[[Page 605]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Highway Administration
_______________________________________________________________________
49 CFR Part 391
Qualifications of Drivers, Vision and Diabetes; Proposed Rule
Federal Register / Vol. 61, No. 5 / Monday, January 8, 1996 /
Proposed Rules
[[Page 606]]
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 391
[FHWA Docket No. MC-96-2]
RIN 2125-AD73
Qualification of Drivers; Vision and Diabetes; Limited Exemptions
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: The FHWA announces a proposal to allow those drivers currently
holding valid waivers from both the vision and diabetes standards
contained in the Federal Motor Carrier Safety Regulations (FMCSRs) to
continue to operate in interstate commerce after March 31, 1996. This
action is directed solely at those drivers who have been granted
temporary waivers to participate in either the Federal vision waiver
study, who numbered 2240, or in the Federal diabetes waiver study, who
number 119 as of November 1, 1995. The FHWA believes that allowing this
special group of drivers to continue to drive after March 31, 1996, is
consistent with the public interest and safe operation of commercial
motor vehicles (CMV). This action is necessary because the waiver
program termination date of March 31, 1996, has been established, and
without this action, the drivers will no longer be qualified to operate
in interstate commerce after that date. The FHWA proposes to allow
these drivers to continue operations, subject to certain operating
conditions. The proposal also includes a technical amendment to
relocate an existing provision so that all limited exemptions from
driver qualification standards can be found in the same subpart.
DATES: Comments must be received on or before February 7, 1996.
ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-96-2,
Room 4232, HCC-10, Office of the Chief Counsel, Federal Highway
Administration, 400 Seventh Street, SW., Washington, DC 20590. All
comments received will be available for examination at the above
address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed envelope. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable. The FHWA may issue a final
determination and rule on this matter at any time after the close of
the comment period.
FOR FURTHER INFORMATION CONTACT: The FHWA has established a special
telephone number to receive inquiries regarding this action. The number
is 1-800-832-5660. Office hours are from 7:45 a.m. to 4:15 p.m., e.t.,
Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION: Section 206(f) of the Motor Carrier Safety
Act of 1984 (MCSA), Pub. L. No. 98-554, 98 Stat. 2835 (codified at 49
U.S.C. 31136(e), formerly 49 U.S.C. App. 2505(f)) allows the Secretary
of Transportation to issue waivers from the Federal Motor Carrier
Safety Regulations only after a determination that such waivers are not
contrary to the public interest and are consistent with the safe
operation of CMVs. Historically, the FHWA has issued limited waivers
and does not intend to enter into any large scale program of
exemptions. The safety performance data collected under the vision and
diabetes waiver programs would be used as the basis for this
determination; however, separate research proceedings would form the
basis for any future adjustments, if warranted, to the current vision
and diabetes standards. The FHWA has decided on a 30 day comment period
in order to give adequate notice to waived drivers of their status at
the conclusion of the waiver program on March 31, 1996. Prior notices
on the waiver program have established the issues facing the FHWA in
deciding the disposition of these drivers; therefore, these issues are
well known to potential commenters on this notice. See 59 FR 50887
(October 6, 1994) and 59 FR 59386 (November 17, 1994).
Vision Waiver Program Background
On February 28, 1992, the FHWA published a notice of proposed
rulemaking (NPRM), 57 FR 6793, requesting comments on the need, if any,
to amend its driver physical qualification requirements relating to
vision. On March 25, 1992, the FHWA published a notice of intent to
issue waivers from the vision requirement, 57 FR 10295. The notice
indicated that applications would be processed as quickly as possible
and waivers would be issued for a period of three years or until the
current rulemaking addressing the Federal vision requirement is
completed, whichever occurred first. The notice imposed certain
conditions and reporting requirements on applicants, among them that
applicants for a waiver submit medical certification that the vision in
their better eye is at least 20/40 acuity, corrected or uncorrected.\1\
\1\ The current Federal vision standard for CMV drivers
requires: distant visual acuity of at least 20/40 (Snellen) in each
eye without corrective lenses or visual acuity separately corrected
to 20/40 (Snellen) or better with corrective lenses, distant
binocular acuity of at least 20/40 (Snellen) in both eyes with or
without corrective lenses, field of vision of at least 70 degrees in
the horizontal meridian in each eye, and the ability to recognize
the colors of traffic signals and devices showing standard red,
green, and amber. 49 CFR 391.41(b)(10).
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The FHWA published a subsequent notice, 57 FR 23370, on June 3,
1992, announcing the receipt of applications by drivers for waiver of
the FHWA's vision requirements and seeking comments on its intent to
waive its vision requirements for drivers who met certain conditions.
The notice explained that the proposed waiver program would enable the
FHWA to conduct a study comparing a group of experienced drivers with a
visual deficit in one eye with a control group of experienced drivers
who meet the Federal vision requirements. The FHWA believed that the
study would provide the empirical data that a previous study did not.
In its Notice of Final Disposition, 57 FR 31458, published on July
16, 1992, the FHWA instituted the waiver program, making temporary
waivers available to drivers who met the announced conditions. The FHWA
determined that the waiver is not contrary to the public interest. The
program is consistent with the national policy, as expressed in the
Rehabilitation Act of 1973 and the Americans with Disabilities Act, to
facilitate the employment of qualified individuals with disabilities.
Moreover, the FHWA found that the waiver program was consistent with
the safe operation of CMVs because the program's requirements would
effectively screen out unsafe drivers.
These safeguards required waiver applicants to be otherwise
qualified under 49 CFR Part 391, and hold a valid commercial driver's
license to operate a CMV issued after April 1, 1990. The applicant must
also have had three years' recent experience driving a CMV without (1)
license suspension or revocation; (2) involvement in a reportable
accident in which the applicant received a citation for a moving
violation; (3) conviction for driving a CMV while intoxicated, leaving
the scene of an accident involving a CMV, commission of a felony or
more than one serious traffic violation involving a CMV; or (4) more
than two convictions for any other moving violation in a CMV. Finally,
the applicant had to present proof from an
[[Page 607]]
optometrist or ophthalmologist certifying that the applicant's visual
deficiency has not worsened since his or her last examination, that
vision in one eye is at least 20/40 acuity, corrected or uncorrected,
and that the applicant is able to perform the driving tasks required to
operate a CMV.
In addition, the applicant had to comply with the following
requirements: (1) report all citations for moving violations involving
a CMV; (2) report the disposition of the charge; (3) report any
accident involvement whatsoever while operating a CMV; (4) submit
documentation of an annual examination by an ophthalmologist or
optometrist; and (5) submit reports of vehicle miles traveled monthly
in a CMV.
Court Decision
On August 2, 1994, the U.S. Court of Appeals for the D.C. Circuit
found that the agency's ``determination that the waiver program will
not adversely affect the safe operation of CMVs is devoid of empirical
support in the record'' and that ``the FHWA has failed to meet the
exacting requirements of section 2505(f) (now 49 U.S.C. 31136(e)).''
Advocates for Highway and Auto Safety v. FHWA, 28 F.3d 1288, 1294.
Consequently, the Court concluded that the FHWA's adoption of the
waiver program was contrary to law, and vacated and remanded the rule
to the agency.
On October 6, 1994, the FHWA published a Notice of Determination,
Request for comments, 59 FR 50887, extending the validity of the vision
waivers for a thirty-day period. The notice also proposed to allow the
waiver program to continue until its original March 31, 1996,
termination date based on the additional empirical evidence presented
in the notice. On the same day, an emergency motion was filed in the
D.C. Circuit requesting that the court issue and enforce the mandate in
Advocates, thereby halting the waiver program. The court issued its
mandate on October 21, 1994, and on October 24, 1994, the court denied
the Advocates' emergency motion.
On November 17, 1994, the FHWA published a Notice of Final
Determination (59 FR 59386) that continued the vision waiver program
through March 31, 1996. The FHWA's decision was based, in part, on data
collected on the group of waived drivers indicating that they had
performed and continued to perform more safely than drivers in the
general population of commercial drivers. The notice announced that the
FHWA would develop and impose more stringent performance conditions to
further reduce the safety risks to the waived drivers and highway
users. This task was accomplished by separate mailings to vision waiver
drivers on February 8, 1995. The notice also announced that the FHWA
would convene a public meeting regarding its research plans with
respect to defining the appropriate vision standard.
Diabetes Waiver Program Background
The FHWA has considered various amendments to its diabetes
requirement since 1977. See 55 FR 41028 (October 5, 1990) (notice of
proposed rulemaking) and 52 FR 45204 (November 25, 1987) (advance
notice of proposed rulemaking) with FHWA docket number MC-87-17. Please
refer to these notices for a complete background discussion of the
FHWA's efforts in this area. Copies can be found in the docket.
The FHWA published in the Federal Register a Notice of Intent to
Initiate a Waiver Program for certain insulin-using diabetic drivers of
CMVs from the absolute prohibition contained in the FMCSRs. See 57 FR
48011 (October 21, 1992). The intent of the proposed waiver program was
to collect data on the driving experience of a group of insulin-using
drivers and use that information to support amending, if warranted, the
current diabetes requirement.2
\2\ The current Federal diabetes standard for CMV drivers
requires no established medical history or clinical diagnosis of
diabetes mellitus currently requiring insulin for control. 49 CFR
391.41(b)(3).
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On July 29, 1993, the FHWA published in the Federal Register a
Notice of Final Disposition allowing certain insulin-using diabetic
drivers to operate a CMV in interstate commerce for a 3-year period.
Stringent conditions were established to satisfy the mandate that this
action be consistent with the safe operation of CMVs. These conditions
included at least three years of experience driving a CMV while the
individual had been using insulin to control his or her diabetes, a
good driving record (as in the vision waiver condition) and
certification from an endocrinologist that the diabetic condition will
not adversely impact on the applicant's ability to operate a CMV. In
addition, participants were required to monitor their blood glucose
levels using portable glucose monitoring devices and maintain accurate
logs, submit monthly driving activity reports to the FHWA, notify the
FHWA of any involvement in an accident and undergo biannual
examinations by an endocrinologist. Approximately 140 drivers were
accepted into the diabetes waiver program. For a complete description
of the diabetes waiver program, see 58 FR 40690, July 29, 1993.
The August 2, 1994, court decision in Advocates called into
question the FHWA's ability to issue waivers to insulin-treated
diabetic drivers because of the similar approach used to pre-qualify
drivers for participation in the diabetes waiver program.
Accordingly, the FHWA notified the diabetes waiver drivers, in
separate mailings on March 28, 1995, of the court's decision and
changes to the Vision and Diabetes Waiver Programs that allowed both
programs to continue until March 31, 1996. The FHWA established
stricter performance conditions for all participants, and enhanced the
FHWA's monitoring of the performance of the waived drivers in order to
ensure compliance with the statutory test as construed by the court.
Proposed Action
The FHWA now proposes that the waived drivers in the vision and
diabetes programs should be allowed to continue driving in interstate
commerce after March 31, 1996. The underlying basis for this proposal
is that the FHWA has significant data to show that the continued
operation of both waived groups of drivers, who total 2359 as of
November 1, 1995, would be consistent with the safe operation of CMVs.
Prior to being admitted into the study the waiver applicants had to
demonstrate a three-year period of accident-free driving performance,
coupled with an absence of serious traffic violations. Since the
program began, the data have shown that the driving performance of this
group of waived drivers was and continues to be better than the driving
performance of all CMV drivers collectively, based on data obtained
from the General Estimates Service (GES) as discussed more fully
below.3 Moreover, each driver in the waiver programs has been
closely monitored, in many cases for three years or more. Coupled with
their 3-year good driving record preceding the waivers, the drivers
have individually merited partial exemption from Secs. 391.41(b)(10) or
391.41(b)(3).
\3\ The GES is a national survey conducted by the National
Highway Traffic Safety Administration and was selected for use as
the best measure of the prevailing national norm relative to large
truck accidents.
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Consequently, the FHWA proposes to amend part 391 of the FMCSRs to
grant grandfather rights to all drivers holding a valid Federal vision
or diabetes waiver on March 31, 1996. By proposing the grandfather
provision, the FHWA intends to allow only those drivers who have been
granted temporary waivers to
[[Page 608]]
participate in the Federal vision and diabetes waiver programs,
numbering 2359 as of November 1, 1995, to continue to operate in
interstate commerce beyond March 31, 1996, subject to certain operating
conditions. This action would provide relief to these drivers who
otherwise would not be permitted to operate a CMV in interstate
commerce. These grandfather provisions would also be conditional in
order to further reduce any possible risk associated with those
drivers. In addition to the conditions regarding medical requirements
discussed below, the FHWA proposes to continue monitoring the
performance of these drivers through periodic checks.
Medical Requirements for Operating Under This Grandfather Provision
The FHWA recognizes that any person's medical or physical condition
may deteriorate in a short period of time. The FHWA proposes to require
an annual physical examination pursuant to Sec. 391.43, instead of
every 2 years as is required of other drivers, as an extra precaution
to ensure the continued safe operation of these drivers. Under this
provision, these drivers, as all other interstate drivers, must be
otherwise physically qualified pursuant to Sec. 391.41 of the FMCSRs.
In addition, the FHWA proposes that vision impaired drivers who
would be grandfathered as a result of this action be required to obtain
an annual vision examination by an ophthalmologist or optometrist
indicating that they have been examined within the past two months and
that the vision in the better eye is at least 20/40 acuity, corrected
or uncorrected. This information would be submitted to the medical
examiner at the time of the individual's annual physical qualification
examination under part 391 of the FMCSRs. Accordingly, the FHWA
proposes to amend part 391 to incorporate these conditions.
Similarly, diabetic drivers proposed to be grandfathered as a
result of this proposal would be required to obtain an annual
examination by a board certified/eligible endocrinologist who must
certify that the driver (1) has been examined within the past two
months; (2) is free of insulin reactions; (3) has the ability and has
demonstrated willingness to properly monitor and manage his/her
diabetes; and (4) does not have a diabetic condition that would
adversely affect his or her ability to operate a CMV. One is free of
insulin reactions if that individual has experienced less than one
documented, symptomatic hypoglycemic reaction per month. These drivers
would be required to carry a source of rapidly absorbable glucose and
continue to monitor their blood glucose using a portable glucose
monitoring device equipped with a computerized memory one hour prior to
and approximately every four hours while driving. Upon request, the
driver would submit his or her blood glucose logs to the
endocrinologist and/or the medical examiner or when otherwise directed
by an authorized agent of the FHWA. A copy of the endocrinologist's
report would be submitted to the medical examiner at the time of the
annual physical qualification examination under part 391 of the FMCSRs.
The FHWA proposes to require this group of drivers to carry a
medical examiners certificate stating: ``Medically qualified by
operation of 49 CFR 391.64.'' Drivers who do not provide a copy of the
required information from the ophthalmologist/optometrist or the
endocrinologist to the medical examiner at the time of their annual
physical qualification examinations cannot be recertified to continue
driving a CMV in interstate commerce under this proposed grandfather
provision.
Analysis
The FHWA's proposed action is supported by the findings in an
assessment prepared for the FHWA to determine the risk associated with
the exposure to the public that is represented by allowing waivered
drivers to continue driving after March 31, 1996. A copy of this
assessment is contained in the docket for public inspection.
Since the inception of the waiver programs, drivers with waivers
have been monitored continuously. The monitoring has involved comparing
the accident rates of the waivered drivers to rates of a reference
group, GES, that represent the safety level for drivers of large trucks
(10,000 lbs. or larger) in the United States. The overall accident
rates of the waivered group represent the cumulative number of
accidents for drivers still in the program at the time of the report.
To determine if the waivered drivers in the vision program posed an
excessive threat to public safety, the monitoring process used the 90
percent confidence intervals associated with each cumulative accident
rate and if the lower limit of that confidence interval did not exceed
the national accident rate, the drivers in the program were considered
not to be a threat to public safety.
To determine if the waivered drivers in the diabetes program posed
an excessive threat to public safety, it was decided that sampling
error and confidence intervals would play no role in the decision
process. This was done because the small sample of drivers who received
diabetes waivers would lead to wide confidence intervals. Rather, in
the event that the accident rate of the diabetes waiver group would
become larger than the national rate, notification would be made that
there could be a threat to public safety. In this case, the national
rate is treated as a constant since it is frequently expressed as an
official rate without a confidence interval.
Additional monitoring and more stringent conditions were
implemented in early 1995 in response to the Advocates decision and the
concerns raised by the safety community. In addition to the group
assessment, the waivered drivers were now subject to a day-by-day
individual assessment relative to program compliance, violations and
accidents. Drivers in violation of program conditions were identified
and removed if warranted; thereby identifying, in a timely fashion,
aspects of the program that could compromise public safety.\4\
Therefore in both cases, data presented below will represent drivers
who are still in the program as of this notice.
\4\ Vision: At the end of October, 1995, 2240 drivers remained
in the vision waiver program. A total of 317 drivers had their
waivers revoked. Two hundred and thirty one were revoked for failure
to submit monthly mileage reports. Twelve were revoked because of
convictions for serious traffic or disqualifying offenses. Sixty-
five were revoked for failure to submit a medical exam. Seven
waivers were canceled for medical reasons. Diabetes: At the end of
October, 1995, 119 drivers remained in the diabetes waiver program.
A total of seven drivers had their waivers revoked. Three were
revoked for failure to submit monthly mileage reports. One driver
had his waiver revoked because of a disqualifying offense. Three
were revoked for failing to submit a medical exam. Nine waivers were
canceled for medical reasons.
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Drivers With Vision Waivers
The FHWA examined the vision waiver data in terms of how the waiver
group performed in relation to the national population of large truck
drivers and the future risk of these drivers from their behavior across
time. An examination of the cumulative accident rates of the vision
waivered drivers has shown a steady decline, and by June 1995, the
cumulative accident rate (1.63) was significantly lower than the most
recent national rate (2.422).
An assessment of the trend in accident rates for this group was
performed since the future driving behavior of this group is important
to the disposition of the program. Findings from the evaluation of
accident data occurring in six-month periods indicate that there is a
decline in the total
[[Page 609]]
accident rates across the periods. This significant negative trend
suggests that these drivers are becoming increasingly careful in the
operation of CMVs.
Some accidents that are the fault of these drivers can be clearly
identified by virtue of an associated moving violation issued to a
waivered driver. All waivered drivers are required to report any
accident involvement whatsoever while operating a CMV and all accident
information is verified through each driver's State motor vehicle
record (MVR). Accidents associated with moving violations were examined
for six-month periods between July 1992 and June 1995. The accident
rates decreased across time with the exception of the period between
January 1994 and June 1994. One explanation for this anomaly could be
the severe winter weather that occurred in that period. The negative
trend for accidents associated with moving violations was not as
pronounced as the negative trend for total accidents for the waivered
group.
This evaluation of the performance data and assessment of risk
indicates that the drivers who received vision waivers and are
presently in the program will present no additional risk if they are
allowed to continue to drive after March 1996. This group of drivers
had accident rates initially (July 1992 to June 1993) that were
comparable to the general population of large truck drivers. Following
that period, their accident rates were consistently lower than the
national rate. That performance, coupled with a three-year period of
safe driving performance prior to being admitted into the program,
suggests that this group of drivers exhibits behavior which presents no
additional risk to the public.
With respect to future risk to the public, the data show a
decreasing trend in total accident rates over equal time periods across
driver participation in the waiver program. Accidents associated with a
moving violation also show a decreasing trend, though not as pronounced
as total accidents. This, combined with accident rates that are lower
than the national rate, shows that these drivers will be less of a
threat to public safety than the general population of CMV drivers.
Moreover, each driver's performance was individually assessed to the
extent that such driver met the requirements of the strengthened
conditions and closer monitoring in effect since February 1995.
Drivers With Waivers for Diabetes
Overall monitoring of this group is performed on a quarterly basis
in relation to the national accident rate for large trucks. As
previously mentioned, the national rate is treated as a constant and
any time the accident rate of the waivered group is larger than the
national rate, notification is made to the FHWA that there could be a
threat to public safety. From September 1993 to May 1995, 11 accidents
were reported and, during this same period, waivered drivers reported a
total of 3.83 million vehicle miles traveled (VMT). The accident rate
of the waivered drivers for this period is 2.872 accidents per million
VMT. This is larger than the 1993 national rate, 2.390 accidents per
million VMT. The property damage only accident rate for the waivered
drivers (2.089) is also larger than the comparable national rate
(1.782) as is the case for the fatal accidents (.261 for waiver group
versus .027 for the national rate).
Because of the warning systems, these accidents were analyzed on an
individual basis before decisions were made to continue the program. Of
the eleven accidents reported, only one was shown to be the fault of a
driver in the program. Although this driver was not initially charged
in this accident, the accident did involve a fatality and the waivered
driver was subsequently charged and convicted of involuntary
manslaughter. Consistent with the conditions, this driver's waiver has
been revoked and the driver has been dropped from the program.
In none of the other ten accidents was the waivered driver found to
be at fault. Most involved only incidental contact with another
vehicle. In fact, only three of the ten accidents would have been
reportable or recordable under applicable regulations due to injury or
damage. These three, plus the one involving a fatality, are the only
accidents which are actually comparable to the national data. Accidents
are not included in the national data unless there is a police report
and one of the involved vehicles is towed from the accident scene. This
is not the case for the waiver programs where all accidents are
included, regardless of how minor they are. If the same criteria were
to be applied to the waivered group, then only three of the eleven
accidents would be comparable to the national data and the resulting
accident rate for the drivers with waivers for diabetes would be .783
per million VMT. This rate is considerably below the national rate of
2.390. Based on this performance data and the demonstrated three-year
period of safe driving by this group prior to being admitted into the
waiver program, it is reasonable to conclude that these drivers are not
a high risk group.
Notwithstanding the good driving performance of these drivers, the
FHWA proposes to require the continued monitoring of the physical
conditions that have caused these drivers to be unqualified pursuant to
Sec. 391.41(b)(10) and Sec. 391.41(b)(3) of the FMCSRs. Therefore, the
FHWA is requiring annual medical examinations to evaluate the
disqualifying conditions in addition to the annual physical
qualification examinations pursuant to part 391 of the FMCSRs.
Notice of Determination
The FHWA believes that its proposed actions in this document are
consistent with the public interest and consistent with the safe
operation of commercial motor vehicles. Based on the performance data
gathered to date and the risk analysis performed on this data, the FHWA
proposes that the drivers who currently hold waivers from the Federal
vision and diabetes requirements should be allowed to continue to
operate CMVs in interstate commerce after March 31, 1996. The
statistics that have been gathered from these groups of waived drivers
indicate that these drivers have performed and continue to perform more
safely than those drivers in the general population of commercial
drivers. In addition to their good driving performance, the continued
monitoring of their physical condition and safety performance will
further ensure the continued safe operation of these CMV drivers. The
performance data collected under the vision and diabetes waiver
programs would be used as the basis for this proposal; however,
separate research proceedings would form the basis for any future
adjustments, if warranted, to the current vision and diabetes
standards.
Additionally, the proposal to permit these grandfathered drivers to
continue to work in their chosen field of occupation is consistent with
the public interest policy of employing persons with disabilities,
which is evidenced in both the Rehabilitation Act of 1973, Pub. L. 93-
112, 87 Stat. 355, as amended, and the Americans With Disabilities Act
of 1990, Pub. L. 101-336, 104 Stat. 327, as amended. Therefore, the
FHWA proposes to amend part 391 of the FMCSRs to incorporate these
grandfather provisions for these groups of drivers.
Technical Amendment
The FHWA is also proposing to relocate the provision in Part 391
providing limited exemptions for intra-
[[Page 610]]
city zone drivers. The current provision, required under the Motor
Carrier Act of 1988 (49 U.S.C. 31136(f)), is codified as paragraph (d)
of 49 CFR 391.2, General Exemptions. This action would redesignate the
provision, without any substantive change, as Sec. 391.62, where it is
more properly included in subpart G, Limited Exemptions.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that the proposed action, if implemented,
would not be a significant regulatory action under Executive Order
12866 or under the regulatory policies and procedures of the DOT. It is
anticipated that the economic impact of this proposed rule would be
minimal because of its limited application and the small number of
affected drivers. Moreover, the action proposed herein would not have
any permanent effect on any existing safety standard. It would merely
continue the status quo by grandfathering some 2,300 drivers who have
been operating safely for substantial periods of time. Therefore, a
full regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act, 5 U.S.C. 601-
612, the FHWA has evaluated the effects of this proposal on small
entities. The FHWA believes that this proposed action would not have a
significant economic impact on a substantial number of small entities
because this proposal is directed solely at a limited number and
narrowly defined population of CMV drivers operating in interstate
commerce. This proposal would not cause a major increase in costs or
prices and, therefore, would not have a significant effect on the
nation's economy. The FHWA intends to further evaluate the economic
consequences of this proposal on small entities in light of the
comments received in response to this notice.
Executive Order 12612 (Federalism Assessment)
This proposed rulemaking, if promulgated, would amend Part 391 of
the FMCSRs pertaining to the qualification of drivers. This action
would allow drivers who currently hold waivers from the Federal vision
and diabetes requirements to continue operating in interstate commerce
after March 31, 1996. This proposal has been analyzed in accordance
with the principles and criteria contained in Executive Order 12612.
Nothing in this proposal would directly preempt any State law or
regulation. This proposal would not limit the policymaking discretion
of the States. Therefore, the FHWA has determined that this proposal
does not have sufficient federalism implications to warrant the
preparation of a separate Federalism Assessment.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities apply to this program.
Paperwork Reduction Act
This program does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1980, 44
U.S.C. 3501-3520.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 391
Driver qualifications, Highways and roads, Highway safety, Motor
carriers, Motor vehicle safety.
Issued on: December 21, 1995.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend 49
CFR, subchapter B, chapter III, part 391 as set forth below:
PART 391--QUALIFICATIONS OF DRIVERS [REVISED]
1. The authority citation for part 391 continues to read as
follows:
Authority: 49 U.S.C. 504, 31133, 31136, and 31502; and 49 CFR
1.48.
Sec. 391.2 [Redesignated]
2. Part 391 is amended by redesignating Sec. 391.2, as Sec. 391.62,
and revising the section to read as follows:
Sec. 391.62 Limited exemptions for intra-city zone drivers.
The provisions of Secs. 391.11 (b)(1) and 391.41 (b)(1) through
(b)(11) do not apply to a person who:
(a) Was otherwise qualified to operate and operated a commercial
motor vehicle in a municipality or exempt intracity zone thereof
throughout the one-year period ending November 18, 1988;
(b) Meets all the other requirements of this section;
(c) Operates wholly within the exempt intracity zone (as defined in
Sec. 390.5);
(d) Does not operate a vehicle used in the transportation of
hazardous materials in a quantity requiring placarding under
regulations issued by the Secretary under 49 U.S.C. chapter 51; and
(e)(1) Was not yet 21 years of age on July 1, 1988; or
(2) Has a medical or physical condition which:
(i) Would have prevented such person from operating a commercial
motor vehicle under the Federal Motor Carrier Safety Regulations
contained in this subchapter;
(ii) Existed on July 1, 1988, or at the time of the first required
physical examination after that date; and
(iii) The examining physician has determined has not substantially
worsened since July 1, 1988, or at the time of the first required
physical examination after that date.
2. A new Sec. 391.64 is added to read as follows:
Sec. 391.64 Grandfathering for certain drivers participating in vision
and diabetes waiver studies.
(a) The provisions of Sec. 391.41(b)(3) do not apply to a driver
who was a participant in good standing on March 31, 1996, in a study
concerning the operation of commercial motor vehicles by insulin-
controlled diabetic drivers, provided:
(1) The driver is physically examined every year, including an
examination by a board-certified/eligible endocrinologist attesting to
the fact the driver is:
(i) Otherwise qualified under Sec. 391.41;
(ii) Free of insulin reactions (one is free of insulin reactions if
that individual has experienced less than one documented, symptomatic
hypoglycemic reaction per month);
(iii) Able to and has demonstrated willingness to properly monitor
and manage his/her diabetes; and
(iv) Not likely to suffer any diminution in driving ability due to
his/her diabetic condition.
(2) The driver agrees to and complies with the following
conditions:
(i) A source of rapidly absorbable glucose will be carried at all
times while driving;
(ii) Blood glucose levels are to be self-monitored one hour prior
to driving and
[[Page 611]]
at least once every four hours while driving or on duty prior to
driving using a portable glucose monitoring device equipped with a
computerized memory;
(iii) Blood glucose logs will be submitted to the endocrinologist
or medical examiner at the annual examination or when otherwise
directed by an authorized agent of the FHWA; and
(iv) A copy of the endocrinologist's report will be provided to the
medical examiner at the time of the annual medical examination; and
(v) A copy of the annual medical certification will be provided to
the employer for retention in the driver's qualification file and a
copy of the certification will be retained on his/her person while
driving for presentation to a duly authorized federal, state or local
enforcement official.
(b) The provisions of Sec. 391.41(b)(10) do not apply to a driver
who was a participant in good standing on March 31, 1996, in a study
concerning the operation of commercial motor vehicles by drivers with
visual impairment in one eye, provided:
(1) The driver is physically examined every year, including an
examination by an ophthalmologist or optometrist attesting to the fact
the driver
(i) Is otherwise qualified under Sec. 391.41; and
(ii) Continues to measure at least 20/40 (Snellen) in the better
eye.
(2) The driver provides a copy of the ophthalmologist or
optometrist report to the medical examiner at the time of the annual
medical examination.
(3) The driver provides a copy of the annual medical certification
to the employer for retention in the driver's qualification file and
retains a copy of the certification on his/her person while driving for
presentation to a duly authorized Federal, State or local enforcement
official.
3. Section 391.43 is amended by redesignating paragraphs (e), (f)
and (g) as paragraphs (f), (g) and (h), respectively and by adding a
new paragraph (e) to read as follows:
Sec. 391.43 Medical examination; certificate of physical examination.
* * * * *
(e) Any driver operating under a limited exemption authorized by
Sec. 391.64 of this part shall furnish the medical examiner with a copy
of the annual medical findings of the endocrinologist, ophthalmologist
or optometrist, as required under that section. If the medical examiner
finds the driver qualified under the limited exemption in Sec. 391.64,
such fact shall be noted on the Medical Examiner's Certificate.
* * * * *
4. Section 391.43 is further amended by inserting in the form
following newly designated paragraph (h), a new entry reading ``____
Qualified by operation of 49 CFR 391.64'' immediately following the
entry ``____ Medically unqualified unless driving within an exempt
intracity zone''.
Sec. 319.45 [Amended]
5. Section 391.45 is amended by revising ``Sec. 391.2(d)'' in
paragraph (b)(2) to read ``391.62, or only by operation of the
exemption in Sec. 391.64,''.
[FR Doc. 96-218 Filed 1-5-96; 8:45 am]
BILLING CODE 4910-22-P